Babukumar v. Briston and others

1 MACA No.1078 of 2011 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA,** ## **1943** ## **MACA NO. 1078 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 996/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/S:** BABUKUMAR, S/O.GANGADHARAN 'DEVAGANGA',CHITTILANCHERY,PALAKKAD DISTRICT. BY ADV SRI.V.BINOY RAM ## **RESPONDENT/S:** |1|BRISTON , S/O.PETER, 301/63| |---|---| ||CHIRAMBATH HOUSE,PANNIANKARA,PANTHALAMPADAM,,| ||PALAKKAD DISTRICT-678683.| |2|SHIJU,S/O.VASUDEVAN,KUNDILIDIVU| ||THIRUVAZHIYAD.P.O,PALAKKAD DISTRICT,, PIN-678508.| |3|NATIONAL INSURANCE CO.LTD,EAST FORT| ||COMPLEX,FORT MAIDAN,PALAKKAD-678001.| |4|RAVEENDRAN,S/O.CHANDRAN,PUTHENPURA| ||HOUSE,THITTAMPURAM,THIRUVIZHAYADU.P.O,,| ||NENMARA,PALAKKAD-678508.| |5|UNITED INDIA INSURANCE CO.LTD.| ||L.G.TOWERS,2ND FLOOR,NEAR BUS STAND,NENMARA,,| ||PALAKKAD DISTRICT-678508.| ||BY ADV SMT.T.C.SOWMIAVATHY R5| ||BY ADV LAL GEORGE R3| ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1078 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.1078 of 2011** ## **====================== Dated this the 1[st] day of December, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.996/2006 on the file of the Motor Accidents Claims Tribunal,Palakkad. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 4.8.2005. It was his case that, on the above said day, while he was travelling pillion on a motor cycle bearing registration No.KL-9M/1293 (motor cycle) along the Chittilanchery-Mudappallur public road, a jeep bearing registration No.KBF 5705 (jeep), driven by the second respondent in a rash and negligent manner, hit the motor cycle. The appellant sustained serious injuries 3 MACA No.1078 of 2011 including a fracture of his right tibia and fibula. He was treated at the Jubilee Mission Hospital, Thrissur. The appellant was a Teacher by profession in Yogini Matha Girls High School, Kollamkode and was drawing a monthly salary of Rs.7,000/-. The first respondent was the owner and the third respondent was the insurer of the jeep. The fourth respondent was the owner-cum-driver and the fifth respondent was the insurer of the motor cycle. The appellant claimed a compensation of Rs.1,62,500/- from the respondents. 3. The rider of the motor cycle also filed OP (MV) 573/2006 before the same Tribunal, seeking compensation on account of the injuries sustained by him in the accident. 4. The third respondent had filed a written statement, inter alia, contending that the accident occurred due to the negligence of the rider of the motor cycle. The third respondent also disputed the age, income 4 MACA No.1078 of 2011 and occupation of the appellant. 5. The Tribunal consolidated and jointly tried the two claim petitions. 6. The petitioners in two claim petitions produced and marked Exts A1 to A15 series in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, in part, by permitting the appellant to realise from the third respondent an amount of Rs.71,000/- with interest @ 7.5% per annum from the date of claim petition till the date of realization and a cost of Rs.250/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.Binoy Ram V, the learned counsel appearing for the appellant/petitioner, Sri.Lal George, the learned counsel appearing for the third 5 MACA No.1078 of 2011 respondent/insurer of the jeep and Smt.T.C Sowmiavathy, the learned counsel appearing for the fifth respondent/insurer of the motor cycle. 10. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal reasonable and just. ## **Negligence and liability** 11. Exts A1 FIR and A3 AMVI report prove that the accident occurred due to the negligence of the second respondent – the driver of the jeep. Admittedly, the first respondent was the owner and the third respondent was the insurer of the jeep. The respondents have not let in any evidence to controvert the assertion in the claim petition and disprove Exts A1 and A3. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. 6 MACA No.1078 of 2011 ## **Notional Income** 12. The appellant had claimed that he was a Teacher by profession and was drawing a monthly salary of Rs.7,000/-. However, the appellant has not produced any material to substantiate his pleading. 13. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2005, I fix the notional monthly income of the appellant at Rs.5,000/-. ## **Disability** 15. The appellant had produced Ext A14 disability certificate issued by the Assistant Professor, Department 7 MACA No.1078 of 2011 of Orthopedics, Medical College Hospital, Thrissur, to prove that he has a permanent disability of 8%. Nevertheless, the Tribunal for the reason that the appellant had not examined the Doctor who issued Ext A14, declined to award any compensation for loss due to disability. 16. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has categorically held that in a case of injury, if the Tribunal is not satisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injuredclaimant to a duly constituted Medical Board. Also, what needs to be looked into in a case of injury is the functional disability of the injured-claimant. 17. In the instant case, although Ext A14 disability certificate was produced and accepted in evidence without any demur or protest from the respondents, the Tribunal has perfunctorily rejected the certificate on the 8 MACA No.1078 of 2011 ground that the Doctor was not examined. The course adopted by the Tribunal is erroneous and wrong in view of the law laid down in **Raj Kumar** (supra). 18. On a re-appreciation of Ext A14 disability certificate, it is seen that the appellant has a non-union of fibula lower 1/3rd with disability percentage of 3%. Similarly, he has stiffness of his ankle and stiffness of his knee assessed at 3%. The Doctor has also assessed 2% disability due to the united fracture of the tibia. 19. Taking into account the fact that the appellant was a Teacher by profession and that he has a non-union of fibula lower 1/3rd, stiffness of his ankle and knee, I assess his functional disability at 5%. ## **Multiplier** 20. Admittedly, the appellant was aged 32 years at the time of the accident. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be 9 MACA No.1078 of 2011 adopted is '16'. ## **Loss due to disability** 21. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.5,000/-, his functional disability at 5% and the multiplier at '16', I award him an amount of Rs.48,000/- as compensation for loss due to disability. ## **Loss of earnings** 22. It is on record that the appellant was treated as inpatient for the period from 4.8.2005 to 20.8.2005, 19.4.2007 to 21.4.2007 and 18.10.2007 to 22.10.2007 at the Jubilee Mission Hospital and Ganga Hospital., i.e., for a total period of 22 days. Thus, I hold that the appellant was indisposed for a period of four months. 23. In view of the refixation of the notional monthly income of the appellant at Rs.5,000/-, I award him an amount of **Rs.20,000/-** towards loss of earnings. 24. The appellant had claimed transportation 10 MACA No.1078 of 2011 expenses, damage to clothing and bystander expenses. The Tribunal has awarded only an amount of Rs.2,000/under the other eligible counts. ## **Bystander expenses** 25. Taking into account the fact that the appellant was treated as an inpatient for a period of 22 days and that the accident occurred in the year 2005, I award him an amount of **Rs.5500/-** towards bystander expenses, viz., Rs.250 per day x 22 days. 26. With respect to the compensation under the heads transportation expenses, damage to clothing and extra nourishment, I hold an amount of Rs.2,000/- is reasonable and just. ## **Loss of amenities** 27. The appellant had claimed an amount of Rs.80,000/- as compensation under the head loss of amenities. The Tribunal has awarded only an amount of Rs.6,000/- under the said head, which according to me is 11 MACA No.1078 of 2011 too meagre. 28. On a consideration of the fact that the appellant was treated as an inpatient for a period of 22 days, that he was indisposed for a period of four months, and that he has suffered a functional disability of 5%, I award him a further amount of **Rs.14,000/-** under the head loss of amenities, i.e., a total amount of Rs.20,000/-. ## **Other heads of compensation** 29. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 30. On an over all re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. 12 MACA No.1078 of 2011 |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|3,000/-|20,000/-| |2|Transportation expenses,<br>damage to clothing and<br>extra nourishment|2,000/-|2,000/-| |3|Bystander expenses|Nil|5,500/-| |4|Medical expenses|42,000/-|42,000/-| |5|Pain and sufferings|18,000/-|18,000/-| |6|Loss of amenities|6,000/-|20,000/-| |7|Loss due to disability|Nil|48,000/-| ||Total|71,000/-|1,55,500/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.84,500/-** (Rupees Eighty Four Thousand Five Hundred only) with interest at the rate of 7.5% per annum on the enhanced compensation from the date of the claim petition till the date of realisation, after deducting interest for a period of 409 days, i.e. the period of delay in filing the appeal and as ordered by this Court on 8.11.2021 in C.M Appln 1/2011, and a cost 13 MACA No.1078 of 2011 of Rs.10,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, The Tribunal shall disburse the compensation amount to the appellant in accordance with law. SD/- sks/2.12.2021 **C.S.DIAS, JUDGE**